As part of our continuing commitment to provide outstanding representation and to serve as an information resource, we wish to inform you of a recent decision on elevation related risks under the Labor Law. As we have noted before, Labor Law cases present many varying factual patterns. This is what makes labor law cases interesting as well as potentially dangerous. A recent case involving a claim of an elevation risk by the Second Department provides an interesting illustration of the Labor Law.

In Eddy v. John Hummel Custom Builders, the plaintiff and his co-worker manually loaded a number of heavy pieces of equipment onto the back of a pickup truck in order to transport the materials from one location at a construction site to another. One of the items loaded was a cast iron grate weighing approximately 100 pounds. The plaintiff and the co-worker placed the cast iron grate on the open tailgate, because the remainder of the bed of the truck was full. Since they were only traveling a short distance, the co-worker and the plaintiff did not secure any of the materials that were placed onto the bed of the truck. The bed of the truck was not equipped with any sort of seat or platform that was for someone to sit on.

After the plaintiff and the co-worker loaded the truck, they intended to move it approximately 100 or 200 feet. The co-worker advised the plaintiff to sit in the front seat because the co-worker did not think it was safe for someone to ride in the back of the truck with unsecured materials. However, after noting that they were traveling only a short distance, the plaintiff decided to sit on top of the cast iron grate on the open tailgate. His feet hung over the edge of the grate which was three feet above the ground. As the co-worker began to drive the truck, the plaintiff fell to the ground and the cast iron grate fell onto the plaintiff causing injuries.

The plaintiff commenced an action against the general contractor John Hummel Custom Builders, Inc. (hereafter “Hummel”), as well as the owners of the site, asserting violations of Labor Law §240(1) and 241(6). After depositions were completed, Hummel moved for summary judgment dismissing the complaint based on failure to prove violation of Labor Law §240(1) and 241(6). The Supreme Court denied Hummel’s motion as well as its cross-motion for summary judgment on the issue of liability.

Hummel appealed to the Appellate Division. The Appellate Division reversed and dismissed the complaint. The Court noted and cited previous cases that because the distance between the back of a pickup or flatbed truck and the ground is small, the risk of a worker falling off the back of a pickup or flatbed truck is, as a matter of law, not an extraordinary elevation related risk as protected by the Labor Law, but rather one of the usual and ordinary dangers of a construction site. The Appellate Division noted that the plaintiff in this case was not engaged in any act of unloading the truck at the time of the accident, but rather the grate fell onto the plaintiff because the plaintiff had fallen off the truck and onto the ground as a result of the movement of the truck.

In this case, the task the plaintiff was engaged in at the time of the accident was riding in the pickup truck and as the Court of Appeals previously has found, the task of riding in a pickup truck does not present an elevation related risk. In addition, the Appellate Division found that summary judgment should have been granted to Hummel because the sole proximate cause of the accident was the plaintiff’s decision to sit on top of the grate as the truck was moving. Therefore, this was so unforeseeable as to break the causal nexus between any alleged violation of Labor Law §240(1) and the plaintiff’s injuries. The Second Department found that the plaintiff’s decision to sit in this position was as a matter of law, the sole proximate cause of his injuries.

The Court’s decision was the correct one but was made easier because the cause of the accident was plaintiff’s foolish conduct in sitting on top of the heavy gate while the pickup moved.